Citation NR: 9712560
Decision Date: 04/10/97 Archive Date: 04/18/97
DOCKET NO. 95-26 552 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Michelle L. Nelsen, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1942 to
October 1945.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a May 1995 rating decision of the
Department of Veteran’s Affairs (VA) Regional Office (RO) in
St. Louis, Missouri.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO erred in failing to grant
service connection for bilateral hearing loss. Therefore, a
favorable disposition is requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claim for
entitlement to service connection for bilateral hearing loss
is well grounded.
FINDINGS OF FACT
1. The veteran has a current diagnosis of bilateral hearing
loss.
2. The veteran was engaged in combat during service.
3. There is no competent medical evidence of a causal nexus
between the acoustic trauma suffered inservice and the
hearing loss.
CONCLUSION OF LAW
The veteran’s claim for entitlement to service connection for
bilateral hearing loss is not well grounded. 38 U.S.C.A.
§§ 1154(b), 5107(a); 38 C.F.R. § 3.304(d) (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be granted if the facts, as shown by
the evidence, demonstrate that the current disability
resulted from an injury or disease incurred in or aggravated
coincident with service in the Armed Forces. 38 U.S.C.A.
§ 1110; 38 C.F.R. § 3.303(a).
However, before a claim for service connection can be
evaluated, a person submitting any claim for benefits under a
law administered by the VA bears the initial burden of
submitting evidence “sufficient to justify a belief in a fair
and impartial individual that the claim is well grounded.”
38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 91
(1990).; Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). A
claim that is well grounded is plausible, meritorious on its
own, or capable of substantiation. Murphy, 1 Vet.App. at 81;
Moreau v. Brown, 9 Vet.App. 389, 393 (1996). In a service
connection claim, the “well grounded” requirement of Section
5107(a) requires: a medical diagnosis of a current
disability; medical or, in certain circumstances, lay
evidence of inservice incurrence or aggravation of a disease
or injury; and medical evidence of a causal nexus between the
inservice injury or disease and the current disability.
Moreau, 9 Vet.App. at 393. Where the determinative issue
involves a medical diagnosis, there must be competent medical
evidence to the effect that the claim is plausible; lay
assertions of medical status do not constitute competent
medical evidence. Grottveit v. Brown, 5 Vet.App. 91, 93
(1993).
If an injury or disease was alleged to have been incurred or
aggravated in combat, such incurrence or aggravation may be
shown by satisfactory lay evidence, consistent with the
circumstances, conditions, or hardships of combat, even if
there is no official record of the incident. 38 U.S.C.A.
§ 1154(b); 38 C.F.R. § 3.304(d). “Satisfactory evidence” is
credible evidence. Collette v. Brown, 82 F.3d 389, 392
(1996). Such credible, consistent evidence may be rebutted
only by clear and convincing evidence to the contrary.
38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). This provision
does not establish a presumption of service connection, but
eases the combat veteran’s burden of demonstrating the
occurrence of some inservice incident to which the current
disability may be connected. Collette, 82 F.3d at 392; see
Caluza v. Brown, 7 Vet.App. 498, 507 (1995) (holding that §
1154(b) relaxes the evidentiary standards as to the service
incurrence requirement to ground a claim); accord Russo v.
Brown, 9 Vet.App. 46, 50 (1996). Therefore, “[s]ection
1154(b) provides a factual basis upon which a determination
can be made that a particular . . . injury was incurred
. . . in service but not a basis to link etiologically the
[injury] in service to the current condition.” Cohen v.
Brown, No. 94-661, slip op. at 12 (U.S. Vet. App. March 7,
1997) (citing Libertine v. Brown, 9 Vet.App. 521, 524 (1996);
Caluza, supra).
The veteran’s service medical records (SMRs) are negative for
a report of any acoustic trauma, or the complaint or
treatment of any hearing loss related thereto. The veteran’s
military occupational specialty (MOS) was truck driver,
heavy, which does not presuppose exposure to acoustic trauma.
His separation examination recorded an evaluation of 15/15
bilaterally. In addition, a December 1947 VA examination
revealed an evaluation of 20/20 bilaterally. However, the
veteran claims that he suffered combat-related acoustic
trauma, and his DD 214 shows that he was awarded the Purple
Heart for wounds received in combat. Accordingly, pursuant
to 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), the
veteran may attempt to demonstrate acoustic trauma by
satisfactory lay evidence.
The veteran stated in support of his claim that he was
subjected noise on a constant basis. In particular, he
disclosed that a bomb exploded only feet away from him,
rendering him unable to hear for 72 hours. He indicated he
was treated in a field hospital. The Board finds this
evidence to be credible. The veteran’s DD 214 reveals that
he participated in the invasion of Normandy. It is not
incredible that in that experience the veteran was subjected
to noise from bombing. Similarly, the statement is
consistent with the conditions, circumstances, and hardships
of the veteran’s service in World War II. Finally, there is
no evidence of record which suggests that the veteran was not
exposed to acoustic trauma. Thus, the Board accepts for
purposes of this analysis that the veteran suffered some type
of acoustic trauma while in service.
However, the evidence of record is completely lacking for any
medical evidence of a causal nexus between the acoustic
trauma and the veteran’s current hearing loss. The Board
acknowledges that the March 1995 VA audiological evaluation,
performed only days before the veteran filed the present
claim, includes a reference to a bomb exploding near the
veteran, causing hearing loss for 72 hours. However, the
reference by itself is not a medical opinion that the
acoustic trauma referred to is etiologically related to the
veteran’s present hearing loss. Moreover, such a notation by
an examiner based on history related by the veteran cannot
suffice as competent medical evidence of causation, as the
veteran is not competent to render a medical diagnosis. See
LeShore v. Brown, 8 Vet.App. 406, 409 (1996) (holding that
“evidence which is simply information recorded by a medical
examiner, unenhanced by any additional medical comment by the
examiner, does not constitute ‘competent medical evidence’”
for purposes of a well grounded claim); Grottveit, supra;
Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992) (holding
that lay person is not competent to render medical
diagnosis).
Under these circumstances, the Board finds that the veteran
has not met his initial burden of submitting evidence of a
well grounded claim for entitlement to service connection for
bilateral hearing loss. 38 U.S.C.A. § 5107(a). As the duty
to assist is not triggered here by a well grounded claim, the
Board finds that the VA has no obligation to further develop
the veteran’s claim. See Grivois v. Brown, 5 Vet.App. 136,
140 (1994).
The Board recognizes that this appeal is being disposed of in
a manner that differs from that used by the RO. The Board
has, therefore, considered whether the veteran has been given
adequate notice to respond, and if not, whether he has been
prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384, 392-94
(1993). In light of his failure to meet his obligation in
the adjudication process by not submitting adequate evidence,
and because the outcome would be the same if the claim was
adjudicated on the merits, the Board concludes that he has
not been prejudiced by this approach. See generally
Edenfield v. Brown, 8 Vet.App. 384 (1995).
The Board views its discussion sufficient to inform the
veteran of the elements necessary to complete his application
for entitlement to service connection for bilateral hearing
loss. Robinette v. Brown, 8 Vet.App. 69, 77-78 (1995).
ORDER
Entitlement to service connection for bilateral hearing loss
is denied.
DEBORAH W. SINGLETON
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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